01A23153_r
08-26-2002
Kevin E. Bailey, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Kevin E. Bailey v. United States Postal Service
01A23153
August 26, 2002
.
Kevin E. Bailey,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A23153
Agency No. 1F-946-0005-99
Hearing No. 370-A1-X2468
DECISION
Complainant appeals from the agency's May 6, 2002 decision finding no
discrimination. Complainant alleges discrimination on the bases of race,
sex, and reprisal when the agency failed to reinstate him to the casual
position: (1) in September 1998; (2) in September or October 1999;
and (3) on May 30, 2000. On March 25, 2002, an Administrative Judge
(AJ), after a hearing, issued a decision finding no discrimination.
Specifically, regarding claim 1, the AJ found that complainant failed to
establish a prima facie case of discrimination. Regarding claims 2 and 3,
the AJ found that the agency presented a legitimate, nondiscriminatory
reason for its actions, which complainant failed to rebut. On May 6,
2002, the agency issued a decision adopting the AJ's finding, which
complainant now appeals.
Regarding claim 1, complainant admits that he failed to apply for
a casual appointment, despite his knowledge that an application was
necessary to be considered. Therefore, we agree with the AJ's finding
that complainant failed to establish a prima facie case of discrimination
because he failed to establish that he applied for the position.
Regarding claims 2 and 3, we concur with the AJ's findings that the
agency articulated legitimate, nondiscriminatory reasons for its
failure to reinstate complainant, which complainant failed to rebut.
With regard to claim 2, the selecting official reasoned that, because
complainant indicated in his application that he had been terminated
from a casual appointment for failure to follow instructions in 1996,
other candidates were more suitable than complainant. With regard
to claim 3, the selecting official indicates that he did not select
complainant because complainant failed to reveal, in his application,
that he had ever been employed by the agency or terminated for cause.
Moreover, the selecting official reviewed complainant's past evaluation
which indicated that complainant had trouble following instructions.
Complainant did not rebut the agency's reasons for not reinstating him.
Therefore, we find that complainant has failed to show, by a preponderance
of the evidence, that the agency did not reinstate him because of his
race, sex, or in reprisal for prior EEO activity.
The agency's decision finding no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as
the defendant in the complaint the person who is the official agency head
or department head, identifying that person by his or her full name and
official title. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
August 26, 2002
__________________
Date